Wakilii

Kabagambe & 2 Others v Kenafric Limited & Another (Miscellaneous Application 157 of 1993)

High Court · [1994] UGHC 87 · 1994 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to serve summons out of the jurisdiction in two civil suits arising from a motor vehicle accident
Decision
Application for leave to serve summons out of the jurisdiction refused

Observed later treatment

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Holding

Application for leave to serve summons out of the jurisdiction dismissed. The applicants failed to establish that the respondents were domiciled or ordinarily resident within Uganda as required by Order 5 rule 25(c). Further, the pleadings did not disclose a cause of action because they omitted to aver that at the time of the accident the second respondent was acting in the course of his employment as servant of the first respondent. Without such averment, the applicants did not have good arguable cases or probable causes of action.

Outcome

Application for leave to serve summons out of the jurisdiction refused

Facts

On 8 January 1993, the second respondent, while driving motor vehicle registration No. KXR 701, collided with the first applicant's mini-bus registration No. UPK 527 at the Uganda Revenue Authority checkpoint immediately after the Busia-Jinja Road junction on the Jinja-Tororo Road. Damage was occasioned to the mini-bus and personal injury to the second and third applicants who were lawful passengers in the mini-bus at the time of the accident. Both respondents were Kenyan nationals, the first respondent being a limited liability company and master of the second respondent. The applicants brought two civil suits and applied for leave to serve summons out of the jurisdiction on the respondents in Kenya.

Issues

  1. Whether the applicants should be granted leave to serve summons out of the jurisdiction on the respondents in Kenya.
  2. Whether the applicants have established a good arguable case or probable cause of action.
  3. Whether the pleadings disclose a cause of action.

Orders

  • Application dismissed.

Rules and key headnotes

Civil Procedure — Service Out of Jurisdiction — Requirements under Order 5 rule 25(c)
An applicant seeking leave to serve summons out of the jurisdiction under Order 5 rule 25(c) of the Civil Procedure Rules must establish that the defendant is domiciled or ordinarily resident within the jurisdiction. Failure to make such averment in the affidavit or pleadings is a serious irregularity that may cause the court to refuse leave.
Civil Procedure — Service Out of Jurisdiction — Good Arguable Case
Before granting leave to serve summons out of the jurisdiction, the court must be satisfied that the applicant has a good arguable case or a probable cause of action. The applicant is not required to prove the case at this stage, but must show that there is a case worthy of being allowed to proceed.
Tort Law — Vicarious Liability — Pleading Requirements
In a claim for vicarious liability arising from a motor vehicle accident, the pleadings must contain an averment that at the time of the accident the servant was acting in the course of his employment. Omission of such averment is a serious defect that renders the pleadings incapable of disclosing a cause of action.

Legislation cited (3)

Cases cited (4)

  • Vitkovice Horni A Hutni Tezirstvo V Korner (2) /79517 2 All 3.R. 554 at p.559
  • C.C. No.54-1 of 1964 which is quoted in Donnebaum V. Kurt Mikolaschek Z^9667 'S.A* 25
  • Assanandl &.-ilsoriai S.Ao Records /^952./ EoA* 560
  • Mrs Kazoora v Attorney General (Civil Suit No. MMB 1 of 1972)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kabagambe & 2 Others v Kenafric Limited & Another (Miscellaneous Application 157 of 1993) [1994] UGHC 87 (3 January 1994)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.